Four GST rates will be made public in two weeks' time: Dasgupta;

Climate Summit: India not to accept legally-binding emission cuts;

Ministry of Corporate Affairs to observe nationwide 'India Corporate Week' from today;

Copenhagen Climate Change Summit: India not keen to go beyond Kyoto Protocol;

Delhi Govt sets up 'Business Facilitation Council' to assist entrepreneurs;

MOE&F gives environmental clearance to about 152 projects per month;

Govt considering Kaveri-Snecma engine JV for light combat aircraft;

Urban India faces shortage of 25 mn houses;

Let's follow equity-driven thumb rule for tax planning

China - The cracks behind the clouds of growth!

Industrial production picks up pace; grows by 10.3% in November

RBI buys gold worth Rs 31463 Cr from IMF;

High-speed broadband becomes fundamental infrastructure in OECD countries;

OECD report on granting treaty sops to income of collective investment vehicles;

NCR Planning Board changes colour code for all contract carriage vehicles in NCR;

OMCs to incur underrecoveries of Rs 54480 Crore: Deora;

Task Force calls for National Electronic Mission;

OECD Members agree to step up fight against bribery;

UN calls for global measures against drug trafficking;

TIOL RUN UP TO GST

gst article.pdf

TIOL COMMENTARY

ddt 14 dec.pdf

Inclusion of After Sale Service and Pre-delivery Inspection Charges in assessable value - Board wants cases sent to call Book;

guest column.pdf

Business restructuring - depreciation on goodwill - An analysis;

china growth story.pdf

China - The cracks behind the clouds of growth!;

tax story.pdf

Let's follow equity-driven thumb rule for tax planning;

MIXED BUZZ

mbuzz1118.pdf

MOE&F gives environmental clearance to about 152 projects per month;

mbuzz1117.pdf

Govt considering Kaveri-Snecma engine JV for light combat aircraft;

mbuzz1116.pdf

Urban India faces shortage of 25 mn houses;

mbuzz1115.pdf

High-speed broadband becomes fundamental infrastructure in OECD countries;

mbuzz1114.pdf

OECD report on granting treaty sops to income of collective investment vehicles;

mbuzz1113.pdf

NCR Planning Board changes colour code for all contract carriage vehicles in NCR;

mbuzz1112.pdf

OMCs to incur underrecoveries of Rs 54480 Crore: Deora;

mbuzz1111.pdf

Task Force calls for National Electronic Mission;

mbuzz1110.pdf

OECD Members agree to step up fight against bribery;

mbuzz1109.pdf

UN calls for global measures against drug trafficking;

2009-TIOL-682-HC-MAD-IT.pdf

Express Newspapers Limited Vs DCIT, Chennai (Dated: November 17, 2009)

Income Tax - Section 254(2) - AO makes various additions and disallows many claims - CIT(A) allows the appeal in part - Tribunal allows the appeal in part which includes the loss claimed on the three heads  - While reference petition is pending before the Tribunal the first respondent files petition u/s 254(2) for rectification of mistakes in the order of the Tribunal - Tribunal  allows the miscellaneous petition in part - Held, what is mistake apparent on the face of the record or where does a mistake cease to be mere mistake, and become mistake apparent on the face of the record is rather difficult to define precisely, scientifically and with certainty. An element of indefiniteness inherent in its very nature and it must be discernible from the facts of each case by judiciously trained mind. Mere existence of a mistake or error would not per se render the order amenable for rectification, but such a mistake must be one which must be manifest on the face of the record. The Tribunal fell in error in invoking the jurisdiction of Section 254(2) to re-write the judgment while reviewing the issue already decided which bears no apparent mistake on the face of the record so as to invoke the jurisdiction. Assessee's writ petition allowed:MADRAS HIGH COURT;

2009-TIOL-681-HC-AHM-IT.pdf

Engineered Polymers (India) Pvt Ltd Vs CCIT (Dated: November 25, 2009)

Income tax - tax effect - Tribunal dismisses Revenue's appeal solely on the issue of tax effect - Revenue later files an application towards higher tax effect - Tribunal recalls the order and decides on merit - case partly goes against the assessee - held, since the Tribunal decision is based on law decided by the Apex Court, the assessee's appeal has no merit - Assessee's appeal dismissed:GUJARAT HIGH COURT;

2009-TIOL-680-HC-HP-IT.pdf

CIT, Shimla Vs Shri Janak Raj Bansal (Dated: November 25, 2009)

Income tax - Sec 80IA, 80IB - Assessee converts limestone into limestone powder - claims deductions - AO disallows - held, it is settled law that the process of converting limestone into powder does involve manufacture and the assessee is eligible for the benefit - Revenue's appeal dismissed:HIMACHAL PRADESH HIGH COURT;

2009-TIOL-768-ITAT-AGRA-TM.pdf + gift story.pdf

Shri Avnish Kumar Singh Vs ITO, Firozabad (Dated: July 17, 2009)

Income tax – Gift - the immediate source of the gift is admittedly established to be from a third party, the donor had appeared in person before the AO and confirmed the making of the gift and the reasons which persuaded him to make the gift, to be treated as genuine:

The following facts are not in dispute:

a) the identity of the donor is not in doubt;

b) gift is by a declaration deed;

c) donor has given an affidavit affirming the making of the gift;

d) there is a confirmation through post of gift per Demand Draft;

e) affirmation of the assessee in examination on oath recorded by A.O

f) affirmation of the donor in examination on oath recorded;

g) direct reply of the donor to the A.O confirming the gift;

h) donor is stated to be a friend of assessee's father;

i) donor was doing some finance business; and

j) source of the gift is the receipt through a cheque of Rs.2,46,000 received by the donor from the Balaji Trading Corporation, Delhi, and a cash amount of Rs.3500 .

The adverse facts as pointed out by the Accountant Member i ) that the assessee or his family had never made any gift of any amount to anybody; ii) that the gift was not on any occasion or function; iii) that the donor visited his house one or two times though, never beyond the drawing room; iv) that the donor is the person of low financial status having monthly income of less than Rs.5,000 /- and has shown withdrawals from his capital account less than Rs.3000 /- per month; v) that the donor has no house no telephone number, no fixed deposit and not any other immoveable assets; or that the original deposit by the donor of Rs.1,25,000 with Balaji Trading Corp. was not proved are not so material to hold the gift not a genuine one or sources thereof unsatisfactory:AGRA ITAT (THIRD MEMBER);

2009-TIOL-767-ITAT-MUM.pdf

ACIT, Mumbai Vs M/s Anchor Health & Beautycare Pvt Ltd (Dated: December 10, 2009)

Income tax - Sec 195(2) - Assessee is a manufacturer of tooth paste, tooth powder and tooth powder - makes payment to non-resident for approval of its symbol, without deduction of tax at source - Since the assessee fails to produce certificate u/s 195(2), AO invokes provisions of Sec 40(a)(i) to disallow the expenditure - held, in view of the Karnataka HC decision in Samsung Electronics Co Ltd case ( 2009-TIOL-629-HC-KAR-IT ) , the assessee cannot escape the rigour of Sec 40(a)(i) as it is not upto the assessee to decide whether the income of the non-resident is assessable in India or not - Revenue's appeal allowed:MUMBAI ITAT;

2009-TIOL-766-ITAT-DEL.pdf

M/s Sony India Pvt Ltd Vs DCIT, New Delhi (Dated: November 30, 2009)

Income tax - Transfer Pricing - Sec 92CA(3) - Assessee is a wholly owned subsidiary of Sony Corporation, Japan - Sony is a global player in consumer electronics business - Since the total value of cross-border transactions with its Associated Enterprises (AEs) exceed Rs 5 crore, the AO refers the case to the TPO for determining ALP in respect of import of completely built up units ("CBUs" components and spare parts) - whether TPO is right in rejecting the primary and secondary analysis done by the assessee and also the selection of TNMM method

The TPO was not satisfied with the comparables chosen by the assessee - TPO after using certain filters, selected comparables whose average operating margin was 7.36% as against 3.07% applied by the assessee. Further, operating margin of the assessee was lowered from 3.91% to 1.195% by making certain adjustments. Based on the same, TPO recommended the additions of Rs.51,88,71,723/-. - CIT(A) upholds the additions - held,

++ A persual of the order of the Tribunal in assessee's own case ( 2008-TIOL-439-ITAT-DEL ) reveals that most of the issues have been elaborately dealt with by the Tribunal and decided in favour of the assessee.

++ The Tribunal in its order has held that income on account of provisions written back, insurance claim, interest received from customers, scrap sales, service income are operating income of the assessee.

++ However, income on account of notice pay received, fines and penalties from staff has been held as non-operating income.

++ Following the verdict of Tribunal in assessee's own case, the Assessing Officer directed to compute the operating profit accordingly.:DELHI ITAT;

SERVICE TAX SECTION

2009-TIOL-2053-CESTAT-AHM.pdf

M/s Gudwin Logistics Vs CCE, Vadodara (Dated: November 6, 2009)

ST - Clearing & Forwarding Agency - Assessee provides services like fumigation, loading, unloading and stuffing of goods in containers in port areas - assessee pays tax as CHA but after deducting the actual costs from the gross value - later the Revenue takes the stand that since the assessee does not have CHA licence it is to be categorised and clearing and forwarding agent - held, since the assessee does not provide forwarding service and a major chunk of payment is related to ocean freight which cannot be charged to service tax, case is remanded for fresh examination: AHMEDABAD CESTAT;

2009-TIOL-2052-CESTAT-AHM.pdf

M/s Kamlesh L Boliya Vs CCE, Rajkot (Dated: November 11, 2009)

ST - Condonation of delay - Assessee files appeal only after recovery notice is issued u/s 87(b)(i) of Finance Act, 1994 - Commissioner(A) rejects the appeal for delay - held, since the assessee had received the OIO and took another three months even after receiving the recovery notice, there is no valid ground to grant stay - delay not condoned and assessee's appeal dismissed:AHMEDABAD CESTAT;

2009-TIOL-2048-CESTAT-AHM.pdf

M/s New Angadia Services Vs CST, Ahmedabad (Dated: November 11, 2009)

ST - Courier Service - Assessee is into money transfer business - Revenue treats it as courier service and raises demand - held, since courier service is about door to door transportation of time-sensitive documents, goods and articles, money transfer prior to 2006 does not fit into the defintion of courier service - it is not the same money which is delivered under money transfer service - assessee has prima facie a strong case - pre-deposit waiver granted.:AHMEDABAD CESTAT;

2009-TIOL-2046-CESTAT-BANG.pdf + ap story.pdf

M/s A P Trade Promotion Corporation Ltd Vs CCE, Hyderabad (Dated: September 10, 2009)

Service Tax – financing of purchase of consumer goods by Government employees – Commission and interest not taxable during the relevant period. Commissioner confirmed demand without examining the liability of the appellants to service tax in relation of various activities – matter remanded : APTPC had advanced amounts to employees of various Government departments to finance purchase of consumer durables and two wheelers. The said activity is hire purchase finance, held to be not exigible to service tax by various judicial authorities including the Apex Court cited by the Counsel for the appellants. A major portion of the taxable value is on account of interest charge realized which in any case could not have validly formed part of taxable value since interest on loan was not taxable as per Section 67 of the Act as it existed at the material time. : BANGALORE CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-2051-CESTAT-MAD.pdf

Techno Device Vs CCE, Chennai (Dated: June 9, 2009)

Central Excise – clubbing of clearances to deny the small scale exemption benefit – exemption cannot be denied on the ground that different partnership firms comprise members of the same family by birth or marriage - The Commissioner was obsessed with an irrelevant fact to find that the separate partnerships were actually not separate firms because the family dominated the business which is natural if the firms comprise of partners from the same family.

Dummy units – the alleged dummy units had not been issued show cause notices asking them to explain why they should not be treated as dummies and their clearances clubbed for the purpose of levy of excise duty. This is an important defect which vitiated the proceedings.: CHENNAI CESTAT;

2009-TIOL-2050-CESTAT-BANG.pdf

M/s MAC Charles ( India ) Ltd Vs CCE, Bangalore (Dated: May 22, 2009)

Central Excise – Appellant in correspondence with revenue since 1997 on applicability of excise provisions for their activities – Allegation of suppression of facts not sustainable as department did not find it necessary to follow up the matter with appellant – Penalty under section 11AC set aside : BANGALORE CESTAT;

2009-TIOL-2049-CESTAT-MUM.pdf + schrader duncan story.pdf

Schrader Duncan Ltd Vs CCE, Mumbai-III (Dated: October 29, 2009)

Rule 25 cannot be invoked where section 11AC is invoked - Phraseology employed viz. Rule 25 read with section 11AC reflects misconception of the author of the SCN – Departmental officers need to be better trained, says CESTAT while setting aside penalty.:MUMBAI CESTAT;

2009-TIOL-2045-CESTAT-DEL.pdf

M/s Arun Enterprises Vs CCE, Ghaziabad (Dated: March 19, 2009)

Central Excise – Pre-deposit under Section 35F - Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring assessee to deposit full or part of the demand – Aspect of time bar not considered by lower appellate authority while dismissing appeal for non-compliance of order for pre-deposit – Matter remanded for consideration of hardship of party as well as interest of revenue and dispose of appeal finally:DELHI CESTAT;

CUSTOMS SECTION

2009-TIOL-684-HC-MAD-CUS.pdf + cha story.pdf

C V Karunakaran Vs Chairman CBEC, New Delhi (Dated: November 27, 2009)

Customs – Customs House Agents - CHALR – Examination passed under the old CHALR , 1984 does not entitle for a licence under CHALR , 2004: The appellants/writ petitioners at best were having liberty to apply for licence. The same cannot be treated as a vested right. The appellants have not even applied for licence under Regulation of the year 1984 and the eligibility condition having been changed drastically in the year 2004 due to the intricacies of the procedures to be followed by the Customs House Agents, the respondents cannot be found fault with.:MADRAS HIGH COURT;

2009-TIOL-683-HC-AHM-CUS.pdf

CC Vs Mahalaxmi Exports (Dated: December 4, 2009)

Customs - refund - assessee makes deposits during investigation - SCN issued u/s 28 - Adjudicating authority confirms demand and imposes penalty - First appellate authority sets aside the demand - assessee files refund application - Revenue alleges unjust enrichment - held, since the sum paid by the assessee is treated as deposit, and the order setting aside the demand is not challeged by the Department, the principles of unjust enrichment cannot be applied - Revenue's appeal dismissed:GUJARAT HIGH COURT;

2009-TIOL-2054-CESTAT-MUM.pdf + shimnit kiwalite story.pdf

Shimnit Kiwalite Industries Ltd Vs CC, Mumbai (Dated: November 17, 2009)

Pre-deposit ordered by CESTAT upheld by Apex Court but time for deposit was extended – Appellant failed to comply with this deadline and makes payment subsequently – CESTAT does not have the power to condone such a delay and restore the appeal rejected earlier for non-compliance.:MUMBAI CESTAT;

2009-TIOL-2047-CESTAT-BANG.pdf

CCE, Guntur Vs M/s Asian Peroxides Ltd (Dated: March 17, 2009)

Customs – 100% EOU – Benefit of exemption notification 8/97-CE dtd 01.03.1997 not deniable for sales to DTA since items imported by assessee are only consumables and not raw materials – Revenue appeal devoid of merits: BANGALORE CESTAT;